Andhra HC (Pre-Telangana)
Ciscons Consulting Engineers And ... vs The Vijayawada Municipal Corporation on 28 July, 1995
Equivalent citations: 1996(1)ALT1, 1996(1)ARBLR552(AP)
ORDER S. Parvatha Rao, J.
1. The respondent in O.P. No. 171 of 1989 before the learned Principal Subordinate Judge at Vijayawada questions his order dated 26.7.1994 permitting the petitioner therein to let in evidence and rejecting the contention advanced on behalf of the respondent that the matter should be decided on affidavits in view of Section 33 of the Arbitration Act, 1940, ('the Act' for short).
2. Original Petition No. 347 of 1985 was preferred for setting aside the award passed by the Arbitrator on the grounds raised in that petition. After counter were filed therein, the matter was posted for enquiry and it was at that stage, that the learned counsel for the petitioner therein (respondent in the present C.R.P.) wanted to adduce evidence in support of the averments in that petition, and objection to that was raised relying on Section 33 of the Act that the questions involved in the O.P. should be decided on affidavits; and as already stated above that objection was rejected by the learned Principal Subordinate Judge permitting other evidence. The petitioner in this C.R.P. questioned the said order of the learned Principal Subordinate Judge by way of an appeal under Section 39 of the Act and the same was numbered as C.M.A. No. 996 of 1994. On 22.8.1994 a Division Bench of this court granted interim stay panding further orders in C.M.P. No. 12061 of 1994. Thereafter when the stay petition came up before us, we directed, the C.M.A. itself to be posted for final disposal. After hearing the matter and reserving for judgment on 3.7.1995 we wondered whether the appeal was maintainable as the impugned order was not one of the appealable orders specified in sub-section (1) of Section 39 of the Act which is as follows :
"39. Appealable Orders - (1) An appeal shal lie from the following orders passed under this Act (and from no others) to the court authorised by law to hear appeals from original decrees of the court passing the order :
An order :
(i) superseding an arbitration;
(ii) on an award stated in the form of a special case;
(iii) modifying or correcting an award;
(iv) filing or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;
(vi) setting aside or refusing to set aside an award;
Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court."
We therefore, posted the matter 'for being mentioned' and it came up on 11.7.1995. A look at Section 39 itself placed the issue beyond doubt. See State of W.B. v. Gourangalal Chatterjee . The learned counsel for the appellant in the appeal-petitioner in the present C.R.P. - accepted that the appeal was not maintainable and sought time to file a petition to convert the same into a revision petition.
3. C.M.P. No. 9157 of 1995 was thereafter filed to permit the conversion of the C.M.A. into a C.R.P. and to raise some additional grounds. The learned counsel for the appellant/petitioner herein relied on the judgment of a Division Bench of this court in State of A.P. v. P. Lakshumu Reddy (1994 (1) APLJ 89), in which it was held that no appeal was provided under Act in respect of matters other than those contemplated by Sections 17 and 39 of the Act and that therefore in all matters where appeals did not lie under the Act, revisions under Section 115 of the Code of Civil Procedure would lie to the High Court in view of Section 41 of the Act because filing of revisions in the High Court would not be inconsistent with the provisions of the Act, or the Rule made thereunder. He also relied on a judgment of a Division Bench of the Delhi High Court in Mehta Teja Singh & Co. v. Fertilizer Corpn. of India , where also one of the question that arose was whether appeals preferred under Section 39(1)(vi) of the Act should be treated as revisions. I. D. Dua, C.J. (as his Lordship then was) speaking for the Division Bench held as follows :
"In our opinion, if an appeal is held to be incompetent, then the memorandum of appeal can, in a fit case, be treated, as a revision provided there is no other legal infirmity in adopting this course. It may be pointed out that the label place on a cause is not conclusive and does not ordinarily affect the jurisdiction of the court to allow the label to be corrected by treating an appeal as a revision or a revisions as an appeal, provided of course the cause of justice so demands."
To the same effect is the decision of another learned Single Judge of the Delhi High Court in Jiwan Dass v. Narain Dass (AIR 1981 Delhi 291), wherein, also a preliminary objection as to the maintainability of an appeal under the Act on the ground that none such could lie as the order of interim stay could be made by the trial court under Section 41 of the Act which was not appealable, was upheld and the appeal was treated as a revision holding that "where no appeal lies but an appeal has been wrongly preferred, the court has the wide discretion to treat it as a revision where the conditions laid down under Section 115, C.P.C. are satisfied", relying on a decision of the Supreme Court in R.W.S.S. of India v. Union of India . The Supreme Court in that case held that the High Court of Allahabad was right in converting an appeal into a revision after accepting the contention that the appeal was not maintainable that was also a matter arising under the Act. Reference also can be made to a matter arsing under the Act. Reference also can be made to the decision of a Division Bench of this court in Raghunatharaju v. Kasim Khan . In view of this legal position C.M.P. No. 9517 of 1995 was allowed by us and the C.M.A. is converted into the present C.R.P.
4. However, we are not inclined to interfere with the order of the learned Principle Subordinate Judge impugned in the C.R.P. as it cannot be said that he did not have jurisdiction to so order permitting to let in evidence and we do not find that he exercised the jurisdiction illegally or with material Irrigularity. Section 33 of the Act provides as follows :
"Arbitration Agreement or award to be contested by Application -
Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the court and the court shall decide the question on affidavits :
Provided that where the court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit."
The proviso to the section clearly empowers the court in fit cases for hearing on other evidence also and the questions arising can be decided on that evidence and not on affidavits only. When it would be just and expedient for hearing any application on other evidence depends on the facts and circumstances of each case and there cannot be a generalisation in that regard. Sir John Lort-Williams, J. of the Calcutta High Court in Deokinandan v. Basantlal (AIR 1941 Cal. 527), treated, the plaint filed before him "as an application under Section 33, and set it down for hearing with witnesses, because the question whether the contracts were gaming and wagering contracts cannot conveniently be tried on affidavits". Referring to that decision Sen, J. observed as follows in Liladhar v. Firm Radhakishan Ramasahaya (AIR 1946 AP 152), with reference to the case before him preferred under Section 33 of the Act :
"Section 33 of the Act empowers a court to decided a case on affidavits, but, it may in appropriate cases, whenever, it deems it just and expedient, set down an application for hearing on others evidence and it may pass such orders for discovery and particulars as it may do in a suit. In a case of this magnitude which involves many complicated and contested questions of fact and law the court will normally decide the case on evidence and not merely on affidavits."
In Jagdish Mahton v. Sundar Mahton (AIR 1949 Patna 393), a Division Bench of the Patna High Court set aside the order of the court below holding that the issues raised in that case on an application under Section 33 of the Act were not such as could properly be decided on affidavits. In that case the arbitration deed itself was questioned as forged and some of the parties denied knowledge of the arbitration and the alleged award. The Bench observed that although the pleadings involved serious allegations of fraud, the learned Subordinate Judge decided to proceed upon affidavits. To the same effect is the decision of a Division Bench of the Punjab High Court in Moti Mahal Theatres Ltd. v. Babu Lal . The trial court in that case ordered the parties to file affidavits in support of their respective contentions and also gave a direction to the effect that if any party wished to produce other evidence in the form of witnesses he should seek the permission of the court. An application made by one of the parties (appellant before the High Court) asking for permission to summon his witnesses was rejected and the trial court proceeded to consider the evidence before it and pronounced judgment accepting the award and passing a decree on the basis of the award. The Punjab High Court held that the trial Court should have given an opportunity to the parties to produce their oral evidence before deciding the questions whether the award was a valid award and whether a judgment in its terms should follow. In A. Sankarasadasivam v. A. Kumaravel , a learned Single Judge of the Madras High Court held as follows :
"Perhaps the lower court proceeded on the basis that the question as to the existence of the arbitration Agreement has to be decided only on affidavits in view of Section 33. It is true that Section 33 says that the court shall decide the question as to the existence or validity of the arbitration agreement on the basis of affidavits. But the proviso to that section enables the Court, when it deems it just and necessary, to take further evidence. If the lower court felt that no decision could be rendered on the basis of the affidavits or the affidavits filed are quite inconclusive on the question in dispute, it could call upon the parties to substantiate their case by adducing further evidence. In view of the above provisions the lower court should have granted an opportunity to both sides to prove or disprove the existence of an agreement, as the case may be."
We are of the view that before the discretion under the proviso to Section 33 is exercised by the court, the parties, need not be required to file affidavits and that, on a consideration of the nature of the questions involved in the case, the court can certainly decide whether the matter should be set down for hearing on other evidence. That was what Sir John Lort Williams, J. did in Deokinandan's case (supra). A reference can also be made in this connections to the judgment of a learned Single Judge of Jammu and Kashmir High Court in Saif-Ud-Din Jan v. Executive Engineer, Irrigation (AIR 1977 J&K 19). When an application is made for hearing the matter on evidence other than affidavite, discretion has to be exercised by the court not mechanically but reasonably and with circumspection keeping in view the questions involved and the nature of the disputes raised, in allowing other evidence. When pleadings involve serious allegations of forgery and fraud or other complicated and seriously contested questions of fact, it may be just and expedient to straightway set down the matter for hearing on other evidence. If affidavit evidence is conflicting and inconclusive and has to be tested by cross-examination, other evidence may have to be permitted. Questions involved may be of such nature that they can be resolved only by admitting documentary evidence and that might have to be tested by oral evidence and in such cases it may not be proper to decide on affidavit evidence only. In each case, keeping in view the questions and disputes involved, the court will have to ask itself whether it will be fair and proper and possible to dispose of the matter on affidavit evidence alone or whether other evidence should be allowed - the test is whether it would be just and expedient to do so.
5. In the light of this discussion we do not find any irregularity or illegality in the exercise or jurisdiction vested in the court below under the proviso to Section 33 of the Act. We may also observe that allowing other evidence does not occasion any failure of justice or cause irreparable injury to the petitioner to warrant interference with the order of the learned Principal Subordinate Judge under Section 115 of the Code of Civil Procedure.
In the result, the Civil Revision Petition is dismissed. No. costs.
6. Revision dismissed.